Bald Rock Group Goes Back to Court for
Scenic Views Vital to Maine’s Economy
Grassroots citizen action for sustainable prosperity on the coast
saw a major victory recently, but the battle is not over yet
Wind power and wireless templates differ, but maybe wireless projects in Maine could avoid costly lawsuits by following the lead of Governor Baldacci's Task Force on Wind Power Development. Its February 2008 Final Report advised a collaborative “planned approach” as opposed to “haphazard” protecting Maine’s “treasured... scenic and natural resources.” It called for “the thoughtful involvement of Maine people in the permitting process,” and would “reward well-sited projects with expedited permits.”
Late December 2008, Waldo County Superior Court Judge Jeffrey L. Hjelm ruled against a cell tower proposed for the viewshed of Bald Rock Mountain in Lincolnville, the 1,200-foot summit in Camden Hills State Park overlooking Penobscot Bay.
The site was in the middle of a 180-degree panorama of a forest skirt sweeping from high ledge down to the sea, with an archipelago of islands in the distance. Other mountains share the viewshed, a major allure of the park, which draws more than 180,000 visitors each year from as far away as New Zealand.
Eleven townspeople, including me, filed an 80b appeal to support the Lincolnville Planning Board's denial of the tower permit for "unreasonably adverse impact" on a protected scenic resource. The permit denial had been overturned by the Town's Board of Appeals and the permit issued. In January, our Bald Rock Community group (BRC) celebrated the Superior Court victory reinstating the Planning Board decision.
Our attorney, Lori Londis Dwyer, of Bernstein Shur, said: "The decision of the Superior Court Judge was a strong affirmation of scenic view standards, nailing the issues on the head. It respected the role of the fact finder (the Planning Board) and affirmed a municipality's legitimate right to protect its scenic resources through carefully crafted, detailed ordinances."
But it's not over. Wireless communications company GridCom has filed appeals in both Maine’s Law Court and the Federal First Circuit. (GridCom’s legal name was National Grid Communications, Inc.; due to corporate acquisitions, it is now SBA Towers II LLC. The latter is a wholly-owned subsidiary of SBA Communications Corporation, based in Boca Raton, Florida.)
BRC's response? To brainstorm a fund-raising strategy while our lawyer prepared the Law Court brief. “I am optimistic about our chances on appeal,” said Attorney Londis Dwyer. Judge Hjelm’s 15-page opinion, she noted, “presents a clear roadmap for the Law Court.”
The Brookings Institution's Charting Maine's Future: An Action Plan for Promoting Sustainable Prosperity and Quality Places (2006) emphasizes smart land-use, preserving the state's superb wild spaces. Maine "possesses a globally-known 'brand' built on images of livable communities, stunning scenery, and great recreational opportunities,” says the report. It counsels against “scattershot development.”
Lincolnville is ahead of many Maine towns, working smart growth into its Comprehensive Plan. The plan includes ordinances protecting mapped "Designated Scenic Views" (and "Designated Scenic Resources") for their importance as natural resources key to this sustainable prosperity - both economic and quality of life - for the Midcoast region and thus the entire state.
Ironically, Lincolnville was a defendant with Gridcom in Superior Court, due to the Board of Appeals ruling. The Town has chosen not to join SBA Towers II LLC in the Law Court appeal and will in fact file an Amicus brief defending the ordinances against the charge that they are unconstitutionally vague.
The BRC, whose members use cell phones and appreciate the service, has carried on a courteous but diligent campaign, building the case for businesses working in concert with local communities, choosing appropriate sites and technologies that will not undermine the well-being of those communities.
This is even more relevant now, with President Obama’s focus on a robust alternative energy industry and the expansion of broadband and internet services both part of the stimulus package. Many towers, poles, and power-lines may be in our collective future. The nature and location of these towers and grids should be guided by careful planning and clear permitting guidelines, with the consensus of stakeholders, relying on alternative technologies when suitable. Governor Baldacci’s Task Force moved Maine closer to prudent siting decisions and, one hopes, fewer “unreasonably adverse impacts.”
GridCom and Unicel, the co-applicant for the tower permit, declined to consider alternatives such as a more appropriate site; a modified tower design (compressed); or less-invasive technologies such as relay boxes on existing utility poles and church steeples - better suited to wireless coverage where a road snakes through forested hilly and mountainous terrain, as does coastal Route 1 in Lincolnville.
This 190-foot monopole directly in front of Bald Rock's ledge was proposed to fill a reported cell phone coverage-gap for Unicel (not all cell phones) for a narrow corridor along 4 miles of Route 1, from the entrance of CHSP to Lincolnville Beach. A cost-benefit analysis would conclude the cost is too steep.
In the Federal First Circuit, SBA Towers II LLC is suing Lincolnville, not BRC. Attorney Mark Franco represents the Town. Attorney Lori Londis Dwyer noted she "will be discussing the case with Attorney Franco as it evolves." Regarding this appeal, she said, "the 'substantial evidence' portion of the Federal Telecommunications Act of 1996 should be decided in the Law Court by the time the Federal Court case moves forward. The other grounds - 'effective prohibition' [of the right to provide and have access to wireless service] and 'unreasonable delay' [in Lincolnville's permit-review process] - are very tough standards for SBA Towers II LLC to meet. The First Circuit has affirmed the rights of communities to enforce scenic view standards...in a fair and even-handed manner."
BRC benefits from official non-profit status under the wing of the Natural Resources Council of Maine. For the recent case, BRC raised approximately $60,000 from a wide community of support. Over a period of two years, the group launched letter, postcard, and flyer campaigns; presented three concerts, including one by internationally-acclaimed singer-songwriter Greg Brown; held a dance and silent auction (services and goods donated by local business people); and organized a series of gigantic yard sales near Lincolnville Beach.
As of the last week in March, the Superior Court legal bill was paid in full. Attorney Lori Londis Dwyer estimates the cost of the Law Court at around $12,000.
A local benefactor donated Law Court "seed money" of $1,500. Greg Brown suggested the group release his Camden Opera House concert for Bald Rock on CD (in progress); Bruce Boege of Limin Music in Lincolnville is donating work in his sound studio. A fundraising letter was mailed. And the doors of the gigantic occasional yard sale will open again when the weather warms.
The Brookings Report says "Maine can flourish - if it acts boldly at this critical juncture." This bold citizen group is advocating for a jewel of a view from one of the most popular summits in the State, and the right of Maine residents to have a voice in shaping their future.
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